Discussing Homicide - muder - actus reus.

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HOMICIDE

 

1. MURDER - ACTUS REUS

 

The definition of murder is derived from the writing of the jurist : ‘Murder is when a [person]...unlawfully killeth...any reasonable creature in rerum natura under the Queen’s peace, with malice aforethought...’. A bit of a mouthful, you may think! Anyway, let’s look at actus reus of the wording - essentially, the unlawful killing of a human being - in a little detail.

 

The word ‘unlawfully’ can be taken to exclude killings for which the accused has a complete and valid justification, such as killing in self-defence or in wartime.

 

‘Killeth’ or ‘kills’ means ‘causes the death of’, and I shall deal with causation soon. For the moment, take on board that murder is also a result crime and in accordance with the rule laid down by the House of Lords in  (the cigarette that caused the fire) there is a duty to act in the face of a danger one has created oneself.

 

‘Any reasonable creature in rerum natura’ can be safely shortened to ‘any human being’. This therefore excludes any ‘baby’ in a womb, so if death is caused before the child has an existence independent of its mother, there can be no murder. This is now settled law following the House of Lords’ decision in .

 

This leaves us with the question of what happens if a baby is born and later dies because of an attack on its mother by the defendant whilst in the womb. In other words, say the father is convicted of a section 18 OAPA attack on the pregnant mother, the child is born and later dies as a result of the attack. Look at it logically. Section 18 - intention to cause GBH - is enough to form an intent to murder; you know this from your mens rea lectures.

 

So, had the mother in fact died, then the father would have faced a murder charge as against the mother. Instead, she lived and we now have live-birth-then-death of the child resulting from damage caused to the foetus sustained by the attack. Well, the House of Lords decided that in these circumstances, an intention to inflict grievous bodily harm on the mother cannot amount to murder of the child, although it could amount to manslaughter.

 

It may however still be the case that there could be liability for the murder of the child if the intention was to kill the mother, rather than GBH, and certainly it would be murder if it was intended to cause the child to die after having been born alive. Anyway, let’s move on.

 

The original significance of this expression of ‘under the Queen’s peace’ is somewhat unclear, but the only killings it would now seem to exclude are those in the actual heat and exercise of war or in putting down a rebellion. Otherwise, the killing of aliens (foreigners, not Martians!) whether within UK jurisdiction or outside it, can amount to murder (or manslaughter) and is triable in England by virtue of section 9 .

 

Incidentally, Coke’s definition of murder used to provide that the death of the victim had to occur within a year and a day of the actus reus, but this has now been abolished by the .

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So, let’s come to the central element of the actus reus: ‘killeth’ or causing the death of the victim. Now, because murder is a result crime, it must be proved in each case that the defendant’s actions were the cause of the victim’s death. If the prosecution cannot link the defendant’s conduct to the death, then the defendant must be acquitted. In other words, the prosecution must show that but-for the defendant’s conduct, the victim would not have died. The case of , where the ‘but-for’ cause was the heart attack not the poison, illustrates this point.

 

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